dismissed EB-2 NIW Case: Organic Chemistry

pl.JBLlC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
-- -- 
LIN 06 182 51692 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
/l&g'hd 1/ 
/? John F. Grissom, Acting Chief 
cfV Administrative ~ppeal; office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability in the sciences. The petitioner is a research associate at 
the University of Maryland, Baltimore. The petitioner asserts that an exemption from the requirement of a job 
offer, and thus of a labor certification, is in the national interest of the United States. The director found that the 
petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption fi-om the requirement of a job offer would be in the national 
interest of the United States. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional 
Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are members of 
the professions holding advanced degrees or their equivalent or who because of their exceptional 
ability in the sciences, arts, or business, will substantially benefit prospectively the national 
economy, cultural or educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in the 
national interest, waive the requirements of subparagraph (A) that an alien's services in 
the sciences, arts, professions, or business be sought by an employer in the United 
States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an advanced 
degree. While the petitioner claimed eligibility as an alien of exceptional ability in the sciences, such a finding 
would be of no further benefit to the petitioner as he already qualifies for classification under section 203(b)(2) of 
the Act, except for the issue of the job offer requirement, and exceptional ability is not grounds for a waiver of 
that requirement. 
The sole issue in contention is whether the petitioner has established that a waiver of the job offer requirement, 
and thus a labor certification, is in the national interest. Neither the statute nor the pertinent regulations define the 
term "national interest." Additionally, Congress did not provide a specific defrniion of "in the national interest." 
The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on 
national interest by increasing the number and proportion of visas for immigrants who would benefit the United 
States economically and otherwise. . . ." S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now Citizenship and Immigration Services] believes it appropriate to leave the 
application of this test as flexible as possible, although clearly an alien seeking to meet the 
[national interest] standard must make a showing significantly above that necessary to prove 
the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption from, or waiver of, the job 
offer will be in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 21 5 (Comrnr. 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, it must be shown that 
the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed 
benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve 
the national interest to a substantially greater degree than would an available U.S. worker having the same 
minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be 
established that the alien's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, 
and whose benefit to the national interest would thus be entirely speculative. 
We also note that the regulation at 8 C.F.R. 8 204.5(k)(2) defmes "exceptional ability" as "a degree of 
expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, aliens of 
exceptional ability are generally subject to the job offerllabor certification requirement; they are not exempt 
by virtue of their exceptional ability. Therefore, whether a given alien seeks classification as an alien of 
exceptional ability, or as a member of the professions holding an advanced degree, that alien cannot qualify 
for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his 
or her field of expertise. 
In an introductory statement, counsel stated: 
[The petitioner] is an organic chemist of unique and exceptional ability who is currently 
conducting research to aid in the early diagnosis and treatment of devastating 
neurodegenerative disorders. . . . 
His work is internationally recognized and is cited by his peers who hail him as an 
outstanding scientist with multi-disciplinary skills rarely found in his field anywhere in the 
world. 
Page 4 
Eight witness letters accompanied the petitioner's initial submission. We shall discuss examples of these 
letters here. of the University of Maryland described his collaboration with the 
petitioner: 
Since joining the Nanobiology Program, [the petitioner] has focused on developing a set of 
biophotonic molecular tools known as "caged molecules.'' . . . [The petitioner] has been 
indispensable in the development of the new molecules, which are already proving to be 
breakthrough developments in my field of neuroscience. . . . [The petitioner's] novel work 
has stimulated entirely new approaches to the investigation of neuronal interactions, and will 
no doubt lead to future important discoveries. 
[The petitioner's] latest chemical device has opened up a new avenue of investigation of the 
action of endogenous cannabis-like molecules (endocannabinoids) in regulating cellular 
processes that underlie learning and memory. . . . 
[The petitioner's] work is so highly regarded that eminent scientists from across the U.S. 
have already been seeking out his expertise and his molecular [sic] for use in their own 
programs. 
did not identify the "eminent scientists," and the petitioner did not submit documentary evidence 
to substantiate or clarify claim. 
now president of Sunmeck, Inc., was formerly vice president of ChemPacific Company, a 
pharmaceutical fm, while the beneficiary worked there as an organic chemist. stated: 
[The petitioner's] responsibilities included design and execution of organic multi-step 
synthesis in the laboratory and process development for the pilot plant. With his hands-on 
experiences and techniques, he devised more effective and innovative synthetic 
methodologies to produce several important chemicals by using fewer synthetic steps. . . . 
Compared with US chemists at his level in the field of organic synthesis and pharmaceutical 
sciences, [the petitioner] has unique and exceptional talents with broader knowledge, more 
research experience and process skills. 
Almost all of the initial witnesses had supervised or collaborated with the petitioner. The only exception is 
associate professor at the State University of New York Downstate Medical Center, 
Brooklyn, who stated: 
I have not had the pleasure of working with [the petitioner]. However, I know hm by his 
research interest on design and synthesis of active pharmaceutical ingredients for clinical 
Co. and I am also familiar with the research he did with = 
in the School of Medicine (neuroscience program) at University of 
Maryland. . . . 
It is necessary to discover and develop a new kind of molecular probes to accurately and 
sensitively diagnose the abnormal structures in the brain cells in the early stage [of 
Alzheimer's disease and related disorders] and take an effective measure to relieve or prevent 
these diseases from becoming worse as earlier as possible. Caged compound provides 
specific method to probe the brain cells and neurons. . . . 
In [research relating to Parkinson's disease (PD), the petitioner] synthesized another kind of 
caged vanilloid compound. . . . This approach helped medical researchers to develop more 
accurate and less expensive early diagnostic method in PD diagnosis. . . . 
Compared with the US scientists at his level in the area of synthetic organic chemistry, I 
consider [the petitioner] to have broader knowledge, more research experience and higher 
productivity. 
(Sic.) The petitioner submitted copies of 15 articles he co-wrote between 1995 and 2005. The petitioner also 
listed eight citations of his work that appeared in other articles. The record shows that six of these eight 
citations are self-citations in which the petitioner referred to his own prior work. The other two citations are 
self-citations by the petitioner's co-authors. This initial citation list, therefore, showed no independent 
citation of the petitioner's work. 
On April 12, 2007, the director issued a request for evidence, instructing the petitioner to submit evidence to 
establish "a degree of influence on your field that distinguishes you from other research scientists with 
comparable academic/professional qualifications." In response, counsel stated: 
[The petitioner's] breakthrough findings in the areas of synthetic organic chemistry have 
revolutionized the way that both industrial and academic researchers have approached some 
of the most troubling issues in the field. His findings have been published in two of the 
field's most influential journals, Journal of Neuroscience and Biochemistry. Moreover, 
despite having been published only a short time ago, these papers have already been cited by 
several other scientists and prestigious journals in the field of neuroscience. 
When considering counsel's claims regarding the significance of a particular piece of evidence, we keep in 
mind that the unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Regarding the articles mentioned above, the petitioner documented six citations of one article 
("Endocannabinoid Signaling Dynamics Probed with Optical Tools") and two citations of another article 
("Caged Vanilloid Ligands for Activation of TRPVl Receptors by 1- and 2-Photon Excitation"). Of these 
eight citations, five are self-citations by the petitioner's collaborators, and There 
remain only three independent citations, two of the first article and one of the second. 
The petitioner submitted three further witness letters. Two of the letters are from University of Maryland 
faculty members. - stated that the petitioner's "chemical tools have opened up new 
fields of investigation." 
 stated that a grant proposal involving the petitioner's research won 
high ratings from a peer-review panel, and that the petitioner "is indimensable to the development and 
- - 
execution of our research progra&." 
 did nit specify what rol; the petitioner would have in the 
program once his temporary postdoctoral appointment expires, nor did he explain why permanent 
immigration benefits are needed for a non-permanent appointment. The petitioner's nonimmigrant status 
permits him to work at the University of Maryland through October 9,201 1 .I 
The remaining witness, 
 is an associate professor at Stanford University Medical 
Center. stated that his laboratory uses "caged bioactive substances," activated by light pulses, 
"to control the biochemical processes underlying cellular neurophysiology." asserted that the 
petitioner "is one of very few experts in this emergent technological field. He has made some of the most 
scientifically interesting and usehl caged molecules." Matter of New York State Dept. of Transportation at 
220-221 specifically rejected the argument that a shortage of qualified workers is grounds for a national 
interest waiver. 
is also the editor of a journal that carried one of the petitioner's articles. 
 stated 
that the petitioner's article "was highly original and of superior quality." 
 Regarding the petitioner's 
subsequent work, stated: 
[Tlhe tools created by [the petitioner] have given insight into molecular communications 
between nerve cells in the brain and in the peripheral nervous system. More importantly, 
they represent an entirely new approach to investigate how nerve cells send and receive 
signals in the form of labile lipid molecules. For this reason, [the petitioner's] work truly 
breaks new ground. 
The director denied the petition on February 1, 2008. The director acknowledged the intrinsic merit and 
national scope of the petitioner's work, but found that the petitioner had not shown that he presents a potential 
national benefit that outweighs the national interest inherent in the labor certification process. The director 
noted that most of the citations of the petitioner's work originate from "members of the petitioner's own 
research group," and that the witness letters "fall short of establishing a past history of significant 
accomplishment on the part of the petitioner." The director found only a small amount of evidence of the 
petitioner's impact outside of his own research group. 
On appeal, counsel asserts that "a citation is just a number," and that quality is more important than quantity. 
Counsel contends that the petitioner's "articles were singularly cited by other researchers due to the valuable 
scientific data produced by the petitioner.'' The AAO acknowledges that citation figures are something of a 
blunt instrument when gauging an alien's impact on his or her field, but they have the advantage of being 
objective evidence that exists for its own sake, rather than being specifically created for the express purpose 
of supporting a petition. 
An H-1B nonimmigrant petition, receipt number WAC 08 245 5 154 1, was approved on September 19,2008. 
Counsel argues that the independent citations of the petitioner's work, while few in number, nevertheless are 
of a "qualitative value" that establishes the significance of the petitioner's contributions. We therefore turn to 
the three independent citations that preceded the appeal, to determine the extent to which other researchers 
have singled out the petitioner's work as being especially significant. 
In the article "Endocannabinoid-Mediated Synaptic Plasticity in the CNS" by 
passage citing the petitioner's work reads: "The fast onset of DSI (Heinbockel 
direct 
 interaction with the N-type ca2+ channel." The cited passage is surrounded by similar references to 
findings set forth in other articles. There is no indication that the petitioner's article (of which Heinbockel 
was the primary author) was in any way singled out as being more significant than the numerous other articles 
cited on the same page of article, some of which (unlike the petitioner's article) are cited more 
than once. 
mentioned the same Heinbockel article once in their ten page-article "Two 
Timing-Dependent Plasticity in Somatosensory Cortex." In discussing "the 
presynaptic coincidence detector model, which has been proposed by and her co- 
authors wrote: "A potential difficulty for this model is that eCB synthesis, diffusion, and CB1 receptor 
signaling may be too slow to allow precise encoding of postsynaptic spike timing (Wilson and Nicoll, 2002; 
Heinbockel et al., 2005)." In this context, it appears that the authors cited the petitioner's work only in 
passing, to mention a finding that another research group had already reported three years earlier. 
The remaining independent citation appeared in "Caged Capsaicins: New Tools for the Examination of 
- - 
TRPVl Channels in somatosensory Neurons" by, an article not submitted for publication 
until October 16, 2006, several months after the petition's June 6, 2006 filing date. Citation number 14 
denotes the petitioner's article in this sentence: 
Caged capsaicin(") or vanilloid analogues('3' 14) have been introduced in several recent 
publications, and here we report the synthesis and application of two novel caged capsaicins 
that were developed specifically for electrophysiological experimentation, including the 
kinetic analysis of TRPVl channels and the distinction between intra-and extracellular 
actions of capsaicin. 
Once again, it is not clear how this joint citation of the petitioner's work with that of another research team 
establishes the petitioner's article to be of superior "qualitative value" compared to the other cited works. 
Counsel contends "[tlhe concept of independent citations is irrelevant" because the petitioner "belongs to a 
small, elite group of researchers." We note that counsel had previously asserted that the petitioner's "work is 
internationally recognized and is cited by his peers," and counsel never sought to diminish the importance of 
independent citation until after the director observed the scarcity of such citations relating to the petitioner's 
work. While it appears that relatively few scientists are engaged in precisely the same kind of work as the 
petitioner, the small size of the group does not necessarily classify the group as "elite," such that a great many 
other researchers wish to perform this work, but lack the skills required to do so. A more likely explanation is 
that the explosive diversity of scientific research in recent decades has resulted in an unprecedented degree of 
specialization within fields. 
The petitioner documents nine new independent citations of his work, all published after the etition's filing 
date. (Two of the new articles are by the same research team - 
 and - and the 
passages containing the citations are nearly identical in both articles.) These newly claimed citations do not 
continue a pattern of heavy citation already evident at the time of filing. Even if the petitioner had 
documented substantially more citations on appeal, the beneficiary of an immigrant visa petition must be 
eligible at the time of filing; a petition cannot be approved at a future date after the beneficiary becomes 
eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). 
Counsel argues that the petitioner's "past history of accomplishments must be judged based on the impact of 
his work as well as the unique creativity he has brought to the field." Creativity without impact is of 
questionable value to the national interest, and it is also difficult to gauge objectively. The AAO has no 
quarrel with the contention that the petitioner's work "must be judged based on [its] impact," but the burden 
of proof is on the petitioner to establish that impact. 
The petitioner submits several new witness letters on appeal. These letters follow the same general pattern: 
First, the witnesses assert that they first became aware of the petitioner's work upon the October 2005 
publication of "Endocannabinoid Signaling Dynamics Probed with Optical Tools" in the Journal of 
Neuroscience; the witnesses observe that the journal's publishers selected the article as a highlight of that 
issue of the journal. The witnesses then devote particular attention to a presentation by the petitioner at the 
Gordon Research Conference in October 2007. Finally, the witnesses state that researchers with the 
petitioner's particular skills are rare. 
The 2007 presentation took place well over a year after the petition's June 2006 filing date, and therefore the 
reception of the petitioner's work at that conference is not evidence of the petitioner's impact as of the date of 
filing. A petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 
(Commr. 1998); Matter of Katigbak at 49. We have already addressed and refuted the argument that the 
scarcity of a given talent is presumptive evidence of eligibility for the waiver. 
- of the University of California, Irvine, refers to the petitioner's 2005 article as "a 
groundbreaking paper" that rests on "[tlhe novel chemical tools developed by" the petitioner. - 
a research director at INSERM in Bordeaux, France, states: "the tools created by [the petitioner] 
have given insight into the mechanisms of communications between nerve cells in the brain and in the 
peripheral nervous system. Most significantly, they constitute an entirely new approach to investigate how 
nerve cells send and receive signals in the form of labile lipid molecules." 
, an associate professor at Yeshiva University, credits the petitioner with developing "the 
means to manipulate and control, with high spatial and temporal precision, the physiological process of lipid 
signaling in living brain tissue." , a senior investigator at the National Institutes of Health, 
states: "researchers who fashion new tools are essential to the health and vitality of science. I believe that [the 
petitioner's] innovations place him in this select group." 
Witness letters are not without weight, but a petitioner can hardly be expected to submit unfavorable witness 
letters or identify potential witnesses who declined to provide such letters; it is not unreasonable to expect 
some level of objective confirmation to support the claims made in such letters. Published articles in the 
record make it clear that the petitioner did not invent the technique of using light pulses to activate "caged 
molecules." Bibliographies in the record mention articles on the subject as early as 1988. The petitioner may 
have been on the first research team to apply this process to certain compounds, but the record identifies over 
two dozen other compounds previously subjected to the process. The record does not objectively establish 
that the petitioner's work in this area has attracted significantly more attention than previous work with other 
"caged molecules" prior to 2005. 
The petitioner has demonstrated some independent support for his petition, but the bulk of his recognition 
appears to have occurred well after the petition's filing date. The AAO will take no position here as to 
whether that late recognition would, itself, suffice to justify a national interest waiver. The present petition 
appears to be premature at best. 
As is clear fiom a plain reading of the statute, it was not the intent of Congress that every person qualified to 
engage in a profession in the United States should be exempt fiom the requirement of a job offer based on 
national interest. Likewise, it does not appear to have been the intent of Congress to grant national interest 
waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual 
alien. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement 
of an approved labor certification will be in the national interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. 
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a 
labor certification issued by the Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.